G.R. No. 70332-43 November 13, 1986 GENEROSO TRIESTE, SR., petitioner, vs. SANDIGANBAYAN (SECOND DIVISION), respondent.

Arturo M. de Castro for petitioner. The Solicitor General for respondent.

awarding the supply and delivery of said materials to Trigen Agro-Industrial Development Corporation and approving payment thereof to said corporation in violation of the Anti-Graft and corrupt Practices Act. except only as to the dates of the commission of the offense, voucher numbers, and amounts involved. Criminal Cases Nos. 6856, 6857, 6858, 6859, 6860. 6861, and 6862 were allegedly committed in July, 1980; Criminal Cases Nos. 6863 and 6864, in August, 1980; and Criminal Cases Nos. C-865, 6866 and 6867 in October, 1980. The separate vouchers involved in the twelve (12) cases are said to be the following: Crim. Case #6856, Vchr #211-90-10174 at P558.80 Crim. Case #6857, Vchr #211-80-10187 at 943.60 Crim. Case #6858, Vchr #211-80-10189 at 144.00 Crim. Case #6859, Vchr #211-80-10190 at 071.30 Crim. Case #6860, Vchr #211-80-10191 at 270.00 Crim. Case #6861, Vchr #211-80-10232 at 1,820.00 Crim. Case #6862, Vchr #211-80-10239 at 1,085.80 Crim. Case #6863, Vchr #211-80-10407 at 150.00 Crim. Case #6864, Vchr #211-80-12494 at 500.00 Crim. Case #6865, Vchr #211-81-04-61 at 840.00 Crim. Case #6866, Vchr #211-81-04-62 at 787.00 Crim. Case #6867, Vchr #211-81-04-63 at 560.00

ALAMPAY, J.: The present case relates to an appeal by way of a Petition for Review of the decision promulgated on November 6, 1984, by the Sandiganbayan convicting the herein petitioner, Generoso Trieste, Sr., of twelve (12) separate violations of Section 3 paragraph (h) of Republic Act 3019, otherwise known as the Anti-Graft and Corrupt Practices - Act, which petitioner were accused of in Criminal Cases Nos. 6856-6867 of said Court. Petitioner's motion for reconsideration and/or new trial was denied by the respondent Sandiganbayan under its Resolution of March 11, 1985. The twelve (12) separate Informations filed by the Tanodbayan against the herein petitioner for violation of Section 3 (h) of the Anti-Graft Law are all similarly worded as the information presented in Criminal Case No. 6856 which is hereunder quoted: That on or about the month of July, 1980 and some time subsequent thereto, in the municipality of Numancia, Aklan, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, being then the Municipal Mayor and member of the Committee on Award of the Municipality of Numancia, Aklan and as such, had administrative control of the funds of the municipality and whose approval is required in the disbursements of municipal funds, did then and there wilfully and unlawfully have financial or pecuniary interest in a business, contract or transaction in connection with which said accused intervened or took part in his official capacity and in which he is prohibited by law from having any interest, to wit the purchases of construction materials by the Municipality of Numancia, Aklan from Trigen Agro-Industrial Development Corporation, of which the accused is the president, incorporator, director and major stockholder paid under Municipal Voucher No. 211-90-10-174 in the amount of P558.80 by then and there

twelve informations filed against herein petitioner a because the transactions involved were emergency direct purchasesl by personal canvass. Upon leave of the Court given, the former Solicitor General filed a consolidated comment dated November 4,1984, to the original petition filed in this case dated April 30, 1985 as well as on the supplemental petition dated October 10, 1985. He argued the dismissal of the petition on the ground that the same raise factual issues which are, therefore, non-reviewable (Consolidated Comment, pg. 20; Rollo, 341). The submission made by the Office of the P Solicitor General in the Consolidated Comment dated 7 November 4, 1986, are hereunder , quoted: 7 3 xxx xxx xxx 0 . The impugned decision convicted 5 petitioner for violation of Section 3 (h), 0 paragraph (h) of the Anti-Graft and Corrupt Practices Act which reads as follows: SEC. 3. Corrupt Practices of Public Officers. - In addition to acts or omissions of public officers already penalized by existing laws, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful: xxx xxx xxx (h) Directly or indirectly having financial or pecuniary interest in any business, contract or transaction in connection with which he intervenes or takes part in his official capacity, or in which he is prohibited by the Constitution or by any law from having any interest. The elements essential in the commission of the crime are: a) The public officer has financial or pecuniary interest in a business, contract or transaction; b) In connection with which he intervenes in his official capacity. Concurrence of both elements is necessary as the absence of one will not warrant conviction. (Rollo, pp. 338339). The earlier view taken by the Solicitor General's Office was that petitioner's evidence of divestment of interest in Trigen 'Corporation, which is said to have been effected

(Consolidated Comment, pg. 4; Rollo, 325) After trial, the Sandiganbayan rendered the challenged decision dated November 6, 1984, convicting the petitioner in all the twelve (12) criminal cases, (Rollo, pp. 324-325) and in each case he was sentenced,"...to suffer the indeterminate penalty of imprisonment ranging from THREE (3) YEARS and ONE (1) DAY as the minimum, to SIX (6) YEARS and ONE (1) DAY as the maximum, to further suffer perpetual disqualification from the public office, and to pay the cost of the action." (pp. 37-40, Decision; Rollo, 322). After the petition for review was filed in this case and pending the submission by respondent of its comment to the petition, herein petitioner presented to this Court on June 7, 1985, an urgent petition to lift the order of the Sandiganbayan dated September 12, 1983, suspending him from Office as the elected Municipal Mayor of Numancia, Aklan. His term was to expire in 1986. No objection to the petition for the lifting of the suspension order was interposed by the Solicitor General. Accordingly, and pursuant to the resolution of this Court dated October 1, 1985, petitioner's preventive suspension was lifted and his reinstatement as Municipal Mayor of Numancia, Aklan was ordered to take effect immediately. A supplemental petition, dated October 10, 1985, was later filed by petitioner's new counsel in collaboration with the original counsel on record of petitioner. In this supplemental pleading, it was vigorously stressed that the petitioner did not, in any way, intervene in making the awards and payment of the purchases in question as he signed the voucher only after all the purchases had already been made, delivered and paid for by the Municipal Treasurer. It was further pointed out that there was no bidding at all as erroneously adverted to in the

on February 25, 1980, before the petitioner assumed the Mayorship, should have been presented at the earliest opportunity before the Tanodbayan and because this was not done by him the resolution of the Tanodbayan finding a prima facie case against petitioner should be sustained. Furthermore, petitioner was faulted because the transfer of his interest in the corporate stock of Trigen Corporation should have been recorded in the Securities and Exchange Commission but no evidence of this sort, was presented. The consolidated comment also played up the advertisement of Trigen Corporation in the program of the Rotary Club of Kalibo, Aklan, showing the printed name of petitioner as the PresidentManager of the said corporation. (Consolidated Comment; Rollo, pp. 340-341) Petitioner filed a Reply controverting the allegations and arguments recited in the aforestated Consolidated Comment of the Solicitor General. After considering the pleadings filed and deliberating on the issues raised in the petition and supplemental petition for review on certiorari of the decision of the Sandiganbayan, as well as the consolidated comment and the reply thereto filed by petitioner's counsel, the Court in its resolution of January 16, 1986, gave due course to the petition and required the parties to file their respective briefs. Petitioner's exhaustive and well-reasoned out Brief which was filed with the Court on April 14, 1986, raised the following legal questions. xxx xxx xxx From the foregoing recital of facts, the following legal questions arise: 1. Does the mere signing by a Municipal Mayor of municipal vouchers and other supporting papers covering purchases of materials previously ordered by the Municipal Treasurer without the knowledge and consent of the former, subsequently delivered by the supplier, and, thereafter paid by the same Municipal Treasurer also without the knowledge and consent of the Municipal Mayor, constitute a violation of the provisions of Section 3 (h) of Rep. Act No. 3019 otherwise known as the AntiGraft and Corrupt Practices Act? 2. Does the mere signing of the mere documents above constitute the kind of intervention of taking part in (his) official capacity within the context of the abovementioned law?

3. Was damage or prejudice, as an element of the offense under Section 3 (h) of the said law, caused to the Government or the Municipality of Numancia as a result of the contracts in question and as a corollary thereto, was undue advantage and gained by the transacting corporation? 4. Was there divestment on the part of the herein petitioner of his shares in Trigen Agro-Industrial Development Corporation long before the questioned transactions? (Appellant's Brief, page 15) It was then discus and argued by the petitioner that the prosecution failed to establish the presence of all the elements of the offense, and more particularly to adduce proof that petitioner has, directly or indirectly, a financial or pecuniary interest in the imputed business contracts or transactions. Discussion of petitioner's arguments in this regard will not however, be recited anymore as this was obviated when a new Solicitor General, after seeking and obtaining several extensions of time to file its Brief in this case at bar, filed on October 7, 1986, a "Manifestation For Acquittal" (in lieu of the People's Brief). Rollo, 293). The new Solicitor General's Office after adopting the statement of facts recited in the consolidated comment of the former Solicitor General's Office moved for the acquittal of the petitioner, upon acknowledging and concluding that: xxx xxx xxx Petitioner has divested his interest with Trigen Petitioner sought to establish that before he assumed office as mayor on March 3, 1980, he had already sold his shares with Trigen to his sister Mrs. Rosene Trieste-Tuason. The sale was made by corresponding indorsements to her stock certificate which was duly recorded in the stock and transfer book of the corporation. Respondent Sandiganbayan however doubts the sale because the same was not reported to the SEC. SEC records, as the prosecution evidence show, do not reflect the sale and petitioner still appears as the firm's President. The prosecution's evidence to establish non-divestment of petitioner's interest

with Trigen is weak. Anyway, Trigen has not updated its reports to the SEC since 1976. It have not even submitted its financial annual report ever since. Absence of the sales report in the SEC does not mean that the sale did not take place. Reporting the sale is not a mandatory requirement. Sales of stocks need not be reported to SEC In any event, the law only requires submission of annual financial reports, not sales or disposal of stocks (Section 141, Corporation Code of the Philippines). Upholding the evidence of petitioner's divestment of his interest with Trigen would necessarily allow him to act freely in his official capacity in the municipality's dealings or transactions with Trigen. That in itself is sufficient to acquit him of the crimes charged. (Rollo, pp. 299-300). In the matter of the alleged intervention of petitioner, the Office of the Solicitor General itself subscribes to and on its own volition place on record the following observations: Prosecution failed to prove charges; evidence discloses absence of bidding and award The prosecution's lone witness, Treasurer Aniceto Vega, testified that there never was a public bidding conducted because all the transactions were made by direct purchases from Trigen. Q. In other words, in all these transactions there never really was any public bidding? A. Yes, Sir. There was no public bidding. Q. And these purchases were made by direct purchases from the establishment of Trigen? A. Yes, Sir. (pp. 36-37, Tsn., Oct. 26, 1983)

In the absence of a public bidding and as emphatically declared by the prosecution's sole witness Vega that all the transactions were on direct purchases from Trigen, how can one ever imagine that petitioner has awarded the supply and delivery of construction materials to Trigen as specifically charged in the twelve (12) informations? The charges are of course baseless and even contradict the evidence of the prosecution itself. Even the respondent Court finally found that petitioner did not intervene during the bidding and award, which of course is a false assumption because of Vega's testimony that there was no public bidding at all. Respondent Court said: . . . . In short, accused's intervention may not be present during the bidding and award, but his liability may also come in when he took part in said transactions such as signing the vouchers under certifications 1, 2 and 3 thereof, to make it appear that the transactions were regular and proper. (Resolution dated March 11, 1985 denying petitioner's motion for reconsideration/new trial, page 7). No evidence to prove petitioner approved payment Now, did petitioner intervene by approving payments to Trigen as also charged in the information? Can there be intervention after payment. Vega testified that petitioner signed the twelve (12) municipal vouchers (Exhibits A to L) for the purchase and payment of construction materials. It was sometime after delivery of the construction materials that he (Vega) signed and paid the twelve (12) -municipal vouchers (pages 5 to 7), decision of respondent Sandiganbayan dated November 2, 1984). The prosecution has not presented evidence to show as to when petitioner signed the twelve (12) municipal vouchers. But it can safely be assumed as a matter of procedure that petitioner had signed the voucher after Treasurer Vega signed and paid them., (Rello, pp. 301-303) xxx xxx xxx

Testimonial and documentary evidence confirms that petitioner signed vouchers after payment Additional facts which respondent Court failed to consider and which could have altered the outcome of the case in the following uncontroverted testimony of Josue Maravilla: Q. When these municipal vouchers were prepared by the municipal treasurer, as you said, and then presented to Mayor Trieste for his signature, were the purchases in question already paid? A. They had already been paid for, sir. Q. Previously, prior to the signature of Mayor Trieste? A. Yes, sir. A.J. ESCAREAL: Q. Under what authority were they paid? A. Under official receipt issued by Trigen. Q. Who authorized the payment? A. The municipal treasurer who paid the materials. ATTY. CONSULTA: Q. You said they had already been paid for. Do you know of any receipts issued by Trigen to indicate that at the time these municipal vouchers were signed by Mayor Trieste, the materials had already been delivered and paid by the municipality to Trigen?

xxx xxx xxx A. Yes, sir Q. Now, what exhibits particularly do you know were issued by Trigen to indicate that payments were made prior to the signing of the municipal vouchers by Mayor Trieste? A. Exhibits A, G, B, F, C, D, Exhibit I and Exhibit H. xxx xxx xxx Q. Now, Mr. Maravilla, aside from these prosecution's exhibits which are Trigen receipts showing payments long before the municipal vouchers were prepared, what can you say about the other municipal vouchers in this case in reference to payments made by Trigen to the municipality? ESCAREAL: Payment made by Trigen? ATTY. CONSULTA: I am sorry, Your Honor, made to Trigen by the municipality? A. Official receipts issued by Trigen also indicate that when municipal vouchers marked Exhibits E, B, C, D, F, G, H, I were prepared, they had already been delivered and the amounts indicated therein were already prepared by the municipal treasurer.

Q. Did you say already made by the municipal treasurer-the amounts were already paid by the municipal treasurer? A. Already paid. Q. Who disbursed the funds evidenced by the Trigen official receipts? A. The municipal treasurer, then Mr. Vega. Q. Now, do you know why Mr. Vega asked that those municipal vouchers be nevertheless signed in spite of the fact that he knew that the amounts had already been disbursed and paid by him to Trigen? A. He said that the municipal vouchers for record purposes is necessary to be signed by the mayor. (Tsn., Mar. 5, 1984, pp. 1949). Inasmuch as Treasurer Vega signed and paid the vouchers after the materials were delivered, petitioner's signature on the vouchers after payment is not, we submit the kind of intervention contemplated under Section 3(h) of the Anti-Graft Law. xxx xxx xxx What is contemplated in Section 3(h) of the anti-graft law is the actual intervention in the transaction in which one has financial or pecuniary interest in order that liability may attach. (Opinion No. 306, Series 1961 and Opinion No. 94, Series 1972 of the Secretary of Justice). The official need not dispose his shares in the corporation as long as he does not do anything for the firm in its contract with the office. For the law aims to prevent the don-tenant use of influence, authority and power (Deliberation on Senate Bill 293, May 6,

1959, Congressional Record, Vol. 11, page 603). There is absolutely no evidence that petitioner had, in his capacity as Mayor, used his influence, power, and authority in having the transactions given to Trigen. He didn't ask anyone-neither Treasurer Vega nor Secretary Maravilla for that matter, to get the construction materials from Trigen. Trigen did not gain any undue advantage in the transaction Petitioner should not be faulted for Trigen's transaction with the municipality, which by the way, has been dealing with it even before petitioner had assumed the mayorship on March 3, 1980. Personal canvasses conducted found that Trigen's offer was the lowest, most reasonable, and advantageous to the municipality. . . . (Rollo, pp. 307-308; Emphasis supplied). It is also an acknowledged fact that there was no complaint for non-delivery, underdelivery or overpricing regarding any of the transactions. Considering the correct facts now brought to the attention of this Court by the Solicitor General and in view of the reassessment made by that Office of the issues and the evidence and the law involved, the Court takes a similar view that the affirmance of the decision appealed from cannot be rightfully sustained. The conscientious study and thorough analysis made by the Office of the Solicitor General in this case truly reflects its consciousness of its role as the People's Advocate in the administration of justice to the end that the innocent be equally defended and set free just as it has the task of having the guilty punished. This Court will do no less and, therefore, accepts the submitted recommendation that the decision and resolution in question of the respondent Sandiganbayan be reversed and that as a matter of justice, the herein petitioner be entitled to a judgment of acquittal. WHEREFORE, the decision rendered by the Sandiganbayan, dated November 2, 1984, in Criminal Cases Nos. 6856 to 6867, finding the herein petitioner, Generoso Trieste, Sr. guilty of the violations of Section 3 paragraph (h) of Republic Act 3019, as amended, is hereby set aside and reversing the appealed judgment, a new judgment is now rendered ACQUITTING Generoso Trieste, Sr., of said offenses charged against him with costs de oficio. SO ORDERED.

Teehankee, C.J., Feria, Yap, Fernan, Narvasa, Gutierrez, Jr., Cruz and Paras, JJ., concur. Melencio-Herrera, J., took no part. Feliciano, J., is on leave.

G.R. Nos. L-51065-72 June 30, 1987 ARTURO A. MEJORADA, petitioner, vs. THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents.

claim was approved and the corresponding PNB Check No. SN 5625748 was issued and encashed in the amount of P7,200.00 given only P1,000.00 to claimant (Isagani de Leon), appropriating, applying and converting to themselves the amount of P6,200.00, thereby causing damage and prejudice to Isagani de Leon and the government in the aforementioned amount of P6,200.00. Contrary to law. Except for the date of the commission of the offense, the name of the aggrieved private party, the PNB Check number, the amount involved and the number or John Does, the seven other informations are verbatim repetitions of the above. The facts are found by the respondent Sandiganbayan are as follows: Arturo A. Mejorada was a public officer who was first employed as a temporary skilled laborer in the Bureau of Public Works on March 16, 1947, and then as right-ofway agent in the Office of the Highway District Engineer, Pasig, Metro Manila, from February, 1974 up to December 31, 1978. As a right-of-way agent, his main duty was to negotiate with property owners affected by highway constructions or improvements for the purpose of compensating them for the damages incurred by said owners. Among those whose lots and improvements were affected by the widening of the proposed Pasig-Sta. Cruz-Calamba Road. 2nd IBRD Project, at Binangonan, Rizal were Isagani de Leon, Isaac Carlos, Napoleon Maybituin, Dominga Villaroza, Florentino de la Cruz, Cipriano Aran, Celestina S. Mallari and Rodolfo Rivera, all residents of Mambog, Binangonan, Rizal. Sometime in October or November 1977, petitioner contacted the aforenamed persons and informed them that he could work out their claims for payment of the values of their lots and/or improvements affected by the widening of said highway. In the process, Mejorada required the claimants to sign blank copies of the "Sworn Statement on the Correct and Fair Market Value of Real Properties" and "Agreement to Demolish, Remove and Reconstruct improvements" pertinent to their claims. The claimants complied without bothering to find out what the documents were all about as they were only interested in the payment of damages. In said "Sworn Statements" and "Agreements to Demolish", the value of the respective properties of the claimants were made to appear very much higher than the actual value claimed by them. Likewise, the said "Agreements to Demolish" reflected the value of the improvements as per assessor" which on the average

CORTES, J.: This petition for certiorari seeks to reverse the May 23, 1979 decision of the Sandiganbayan finding the accused Arturo A. Mejorada in Criminal Cases Nos. 002-009 guilty beyond reasonable doubt of violating Section 3(E) of Republic Act No. 3019, otherwise known as the AntiGraft and Corrupt Practices Act. Eight informations were filed by the Provincial Fiscal against the petitioner and jointly tried before the Sandiganbayan. The eight informations substantially allege the same set of circumstances constituting the offense charged, Criminal Case No. 002 reads as follows: That in (sic) or about and during the period comprised from October 1977 to February 1978, in the municipality of Pasig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, being employed in the Office of the Highway District Engineer, Pasig, Metro Manila, as Right-of-Way-Agent conspiring and confederating together with two (2) other John Does whose true Identities and present whereabouts are still unknown, with evident bad faith, and for personal gain, did then and there wilfully, unlawfully and feloniously, directly intervene, work for, and facilitate the approval of one Isagani de Leon's claim for the payment in the removal and reconstruction of his house and a part of his land expropriated by the government having been affected by the proposed Pasig-Sta Cruz-Calamba Road. 2nd IBRD Project at Binangonan, Rizal, while the accused, Arturo A. Mejorada is in the discharge of his official and/or administrative functions and after said

was only P2,000.00 lower than the value declared by the owners in their sworn statements. The value as per assessor was, in turn, supported by the Declarations of Real Property in the names of the claimants containing an assessed value exactly the same as that stated in the Agreements to Demolish "as per assessor", except the claims of De la Cruz and Aran where there is only a difference of P400.00 and P200.00, respectively. It turned out, however, that said Declarations of Property are not really intended for the claimants as they were registered in the names of other persons, thus showing that they were all falsified. A few months after processing the claims, accused accompanied the claimants to the Office of the Highway District Engineer at the provincial capitol of Pasig, Metro Manila, to receive payments and personally assisted the claimants in signing the vouchers and encashing the checks by certifying as to their Identities and guaranteeing payment. Right after the claimants had received the proceeds of their checks, accused accompanied them to his car which was parked nearby where they were divested of the amounts paid to them leaving only the sum of P1,000.00 to each, except Isaac Carlos to whom P5,000.00 was left, explaining to them that there were many who would share in said amounts. All the claimants were helpless to complaint because they were afraid of the accused and his armed companion. The claimants, through the assistance of counsel, filed their complaints with the Provincial Fiscal's Office of Pasig, Metro Manila, narrating in their supporting sworn statements what they later testified to in court. Five issues are raised in this petition to review the decision of the Sandiganbayan: I. Whether or not the essential elements constituting the offense penalized by section 3(e) of Republic Act No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act have been clearly and convincingly proven by the prosecution; II. Whether or not the Sandiganbayan is a court of competent jurisdiction duly constituted in accordance with Pres. Dec. No. 1606; III. Whether or not the penalty imposed upon the petitioner is excessive and contrary to the three-fold rule as provided for by Article 70 of the Revised Penal Code; IV. Whether or not there is a variance between the offense charged in the information and the offense proved; V. Whether or not the conclusion drawn from the record of the Sandiganbayan in arriving at a verdict of

conviction of petitioner is correct is a question of law which this Honorable Court is authorized to pass upon. I. Petitioner contends that the eight informations filed against him before the Sandiganbayan are fatally defective in that it failed to allege the essential ingredients or elements constituting the offense penalized by Section 3(e) of Rep. Act No. 3019. The section under which the accused-petitioner was charged provides: Sec. 3. Corrupt practices of public officers. In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful. xxx xxx xxx (e) Causing any undue injury to any party, including the Government, or giving any private party any unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions through manifest partiality, evident bad faith or gross inexcusable negligence. This provision shall apply to officers and employees of offices or government corporations charged with the grant of licenses or permits or other concessions. Petitioner enumerated three elements which, in his opinion, constitute a violation of Section 3(e). First, that the accused must be a public officer charged with the duty of granting licenses or permits or other concessions. Petitioner contends that inasmuch as he is not charged with the duty of granting licenses, permits or other concessions, then he is not the officer contemplated by Section 3 (e). Section 3 cited above enumerates in eleven subsections the corrupt practices of any public officers declared unlawful. Its reference to "any public officer" is without distinction or qualification and it specifies the acts declared unlawful. We agree with the view adopted by the Solicitor General that the last sentence of paragraph (e) is intended to make clear the inclusion of officers and employees of officers or government corporations which, under the ordinary concept of "public officers" may not come within the term. It is a strained construction of the provision to read it as applying exclusively to public officers charged with the duty of granting licenses or permits or other concessions.

The first element, therefore, of Section 3 (e) is that the accused must be a public officer. This, the informations did not fail to allege. Second, that such public officer caused undue injury to any party, including the Government, or gave any private party unwarranted benefits, advantage or preference in the discharge of his official administrative or judicial functions. Petitioner denies that there was injury or damage caused the Government because the payments were allegedly made on the basis of a document solely made by the Highway District Engineer to which petitioner had no hand in preparing. The fact, however, is that the government suffered undue injury as a result of the petitioner's having inflated the true claims of complainants which became the basis of the report submitted by the Highway District Engineer to the Regional Director of the Department of Highways and which eventually became the basis of payment. His contention that he had no participation is belied by the fact that as a right-of-way-agent, his duty was precisely to negotiate with property owners who are affected by highway constructions for the purpose of compensating them. On the part of the complainants, the injury caused to them consists in their being divested of a large proportion of their claims and receiving payment in an amount even lower than the actual damage they incurred. They were deprived of the just compensation to which they are entitled. Third, the injury to any party, or giving any private party any unwarranted benefits, advantage or preference was done through manifest, partiality, evident bad faith or gross inexcusable negligence. Petitioner argues that for the third element to be present, the alleged injury or damage to the complainants and the government must have been caused by the public officer in the discharge of his official, administrative or judicial functions and inasmuch as when the damage was caused to the complainants, he was no longer discharging his official administrative functions, therefore, he is not liable for the offense charged. The argument is devoid of merit. The Sandiganbayan established the fact that the petitioner took advantage of his position as a right-of-way-agent by making the claimants sign the aforementioned agreements to demolish and sworn statements which contained falsified declarations of the value of the improvements and lots. There was evident bad faith on the part of the petitioner when he inflated the values of the true claims and when he divested the claimants of a large share of the amounts due them. In view of the above holding. We also dispose of the fourth issue which relates to the allegation that petitioner

cannot be convicted for a violation of the Anti-Graft Law because the evidence adduced by the prosecution is not the violation of Section 3 (e) but the crime of robbery. Contrary to the petitioner averment. We find no variance between the offense charged in the information and the offense proved. The prosecution was able to establish through the corroborating testimonies of the witnesses presented how through evident bad faith, petitioner caused damage to the claimants and the Government. The manner by which the petitioner divested the private parties of the compensation they received was part of' the scheme which commenced when the petitioner approached the claimants and informed them that he could work out their claims for payment of the values of their lots and/or improvements affected by the widening of the Pasig-Sta. Cruz-Calamba Road. The evidence presented by the prosecution clearly establish a violation of Section 3(e). II. The petitioner also assails the competency of the Sandiganbayan to hear and decide this case. He argues that before the Sandiganbayan could legally function as a judicial body, at least two (2) divisions, or majority of the justices shall have been duly constituted and appointed. We previously ruled on this matter in the case of De Guzman v. People (G.R. No. 54288, December 15, 1982, 119 SCRA 337). In that case, the petitioner De Guzman questioned the authority of the Sandiganbayan to hear and decide his case on the same ground that herein petitioner assails its jurisdiction. The Court upheld the authority of the Sandiganbayan saying that: Although the Sandiganbayan is composed of a Presiding Justice, and eight Associate Justices, it does not mean that it cannot validly function without all of the Divisions constituted. Section 3 of P.D. 1606 provides that the "Sandiganbayan shall sit in three divisions of three justices each" while Section 5 thereof provides that the unanimous vote of three justices of a division shall be necessary for the pronouncement of a judgment. Thus the Sandiganbayan functions in Divisions of three Justices each and each Division functions independently of the other. As long as a division has been duly constituted it is a judicial body whose pronouncements are binding as judgments of the Sandiganbayan. The judgment convicting petitioner was a unanimous Decision of the First Division duly constituted. It thus met the requirement for the pronouncement of a judgment as required by Section 5 of P.D. 1606supra.

III. The third issue raised by the petitioner concerns the penalty imposed by the Sandiganbayan which totals fiftysix (56) years and eight (8) days of imprisonment. Petitioner impugns this as contrary to the three-fold rule and insists that the duration of the aggregate penalties should not exceed forty (40) years. Petitioner is mistaken in his application of the three-fold rule as set forth in Article 70 of the Revised Penal Code. This article is to be taken into account not in the imposition of the penalty but in connection with the service of the sentence imposed (People v. Escares, 102 Phil. 677 [1957]). Article 70 speaks of "service" of sentence, "duration" of penalty and penalty "to be inflicted". Nowhere in the article is anything mentioned about the "imposition of penalty". It merely provides that the prisoner cannot be made to serve more than three times the most severe of these penalties the maximum of which is forty years. The Sandiganbayan, therefore, did not commit any error in imposing eight penalties for the eight informations filed against the accused-petitioner. As We pointed out in the case of People v. Peralta, (No. L-19069, October 29, 1968, 25 SCRA 759, 783-784): ... Even without the authority provided by Article 70, courts can still impose as many penalties as there are separate and distinct offenses committed, since for every individual crime committed, a corresponding penalty is prescribed by law. Each single crime is an outrage against the State for which the latter, thru the courts of justice, has the power to impose the appropriate penal sanctions. In the light of the above reasons, petitioner cannot assail the penalty imposed upon him as harsh, cruel and unusual (See Veniegas v. People, G.R. No. 57601-06 July 20, 1982, 115 SCRA 790, 792). We deem it unnecessary to pass upon the fifth issue raised in view of the foregoing discussion. WHEREFORE, the petition is denied for lack of merit. SO ORDERED. Teehankee, C.J., Yap, Fernan, Narvasa, MelencioHerrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur.

HON. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. Guerrero, Carmelo, De Silva, Lagmay & Lazo Law Office and Pedro R. Lazo for petitioner.

PADILLA, J.: This is a petition for review on certiorari of the decision of the Sandiganbayan (Third Division) * in Criminal Case No. 4799, finding the petitioner guilty beyond reasonable doubt as principal of the crime of malversation of public funds defined and penalized under Article 217, par. 4 of the Revised Penal Code. From January 1978 to December 1980, petitioner Carmen Labatagos was the cashier and collecting officer of the Mindanao State University MSU General Santos City. She filed a leave of absence for the months of March, April and May 1978 and did not discharge her duties for the said period. On 1 October 1980, Francisco T. Rivera, under Commission on Audit (COA) General Order No. 8022117 (Exh. C) was designated leader of a team to conduct the examination of the cash and accounts of the petitioner. When the team conducted the examination, the petitioner did not have any cash in her posssession, so she was asked to produce all her records, books of collection, copies of official receipts and remittance advices and her monthly reports of collections. Based on the official receipts and the record of remittances for the period from January to August 1978, the audit examination disclosed that the petitioner collected the total amount of P113,205.58 (Exhs. A-1 and A-2) and made a total remittance to the Development Bank of the Philippines (DBP), the depository bank of the university, in the amount of P78,868.69, leaving an unremitted amount of P34,336.19. On the basis of similar official receipts and record of remittances, the audit examination further disclosed that for the period from January 1979 to June 6, 1980, the petitioner made a total collection of P327,982.00 (Exhs. B, B-1, and B-1-a) and remitted to the DBP the total amount of P256,606.25 (Exhs. B-2 and B-2-a) incurring a shortage of P71,365.75. The petitioner signed without exception both Reports of Examination (Exhs. A and B) as well as their supporting summaries. Thereafter, Francisco T. Rivera submitted his report on the examination to the Chairman, Commission on Audit, through the Regional Director, COA, Region IX (Exhs. A4 and B-4).

G.R. No. 71581 March 21, 1990 CARMEN LABATAGOS, petitioner, vs.

Subsequently, Rivera prepared the letters of demand corresponding to the two (2) audit reports (Exhs. A-3 and B-3) and served them personally on the petitioner who signed both letters. Despite the demand letters, the petitioner did not submit any explanation of her shortages. Hence, on 27 October 1981, the Tanodbayan filed with the Sandiganbayan an information charging petitioner with the crime of Malversation of Public Funds, committed as follows: That between the periods January 1978 to August 17, 1978, and January 1, 1979 to June 6, 1980, in General Santos City, Philippines, the said accused a public officer being then the Cashier and Collecting Officer of the Mindanao State University, General Santos Unit, General Santos City, who, by reason of the duties of her office was charged with the duty of collecting school dues and tuition fees of the students of said school, and of remitting to, or depositing with, the school's depository bank, the Development Bank of the Philippines, General Santos City branch, all money collections by way of school dues and tuition fees she collected as Cashier and Collecting Officer, was responsible and accountable for the funds collected and received by her, by reason of her position as Collecting Officer, did wilfully, unlawfully, feloniously and fraudulently, and with grave abuse of confidence, misappropriate, and embezzle the total sum of ONE HUNDRED FIVE THOUSAND SEVEN HUNDRED ELEVEN AND 94/100 P105,711.94), Philippine Currency, out of her collection of P441,187.58, during the aforesaid period, which sum of P105,711.94 she appropriated and converted to her own personal use and benefit, to the damage and prejudice of the Republic of the Philippines in said 1 amount. During the trial, petitioner in her defense claimed that she signed the audit reports on the understanding that her shortage would amount to only P2,000.00; that she could not be held accountable for the collections for March, April and May 1978 because she was on maternity leave; and that several disbursements in the total amount of P49,417.12 were not credited in her favor by the auditors. She claimed further that she should not be held accountable for the alleged misappropriations between the months of January 1978 and August 1978 in the amount of P34,336.19 because those who appropriated the amounts were her superiors

and that the amounts taken were properly receipted but that the receipts were lost. Respondent Sandiganbayan, however, did not give weight nor credence to her defense. Hence, as previously stated, petitioner was found guilty beyond reasonable doubt of the crime of malversation of public funds. The petitioner then filed the instant petition, and alleged the following reasons why the petition should be granted; (1) that respondent court made manifestly mistaken inferences and misapprehended the significance of the evidence which resulted in the erroneous decision rendered in the case; and (2) that respondent court erred in finding the petitioner guilty of the crime charged when there is ample evidence submitted showing that she did not put the missing funds to her personal use. The petition is devoid of merit. The only issue to be resolved in this case is whether or not the guilt of the petitioner has been proved beyond reasonable doubt. The established facts show that respondent court did not err in convicting petitioner for the crime of malversation. As held by said court: There is no merit in the accused's defense. Her claim that she signed the audit report and statement of collections and deposits prepared by the audit team of Francisco Rivera on the understanding that her shortage was only P2,000.00 is belied by the figures clearly reflected on the said documents. Exhibit A, the audit report which she signed without exception, shows that she incurred a shortage of P34,336.19 for the period from January to August 1978; while Exhibit A-1, the statement of her collections and deposits for the same period which she certified as correct, indicates the same amount of P34,336.19 as her shortage. Mrs. Ester Guanzon, the prosecution's rebuttal witness, confirmed that she assisted the accused in the collection of fees; that the accused filed application for maternity leave in March 1978 but continued reporting for work during that month; that the accused did not report for work in April 1978; and that she (Guanzon) was the one assigned to collect the fees in her stead. Miss Guanzon, however, explained that she turned over all her collections to the accused during all the times that she was assisting her in collecting the fees;

and that even in April 1978 when the accused was physically absent from office, she also turned over her collections to the accused ill the latters house with the duplicate copies of the receipts she issued which the accused signed after satisfying herself that the amounts I turned over tallied with the receipts. There is color of truth to Mrs. Guanzon's explanation. All the collections for the months of March and April 1978 are fully accounted for they are itemized in the reports of collection, (Exhs. F and G) and shown to have been duly remitted in the remittance advices for those months. (Exhs. F-1 to F-5; G-1 and G2). The auditor was correct in refusing to credit the accused with the three (3) different amounts mentioned in her letter of October 22, 1980. (Exh. 5) The first sum, P7,140.20, purporting to be refunds of tuition fees to students granted tuition privilages is hot supported by any official authorization for such refunds by the University authorities. Besides, the supposed list of students who were recipients of the refunds (Exh. 10) is incompetent evidence being a mere xerox copy uncertified as a true copy of an existing original. The second sum, P4,494.80 was purportedly spent for the cost of uniforms of the school and basketball balls. P2,100.00 in all (Exhs. 6 and 6-A), and the balance taken by Alikhan Marohombsar and Auditor Casan, (Exh. 6-B). The third amount, P6,702.12, was supposedly covered by vouchers submitted to the Auditor's office through Rosa Cabiguin. (Exh. 12-K) Again, the auditor did not err in not crediting the aforesaid sums to the accused's accountability. The P2,100.00 cost of uniforms and balls, unsupported by a duly accomplished and approved voucher, was not a valid disbursement. And since the alleged vouchers for P6,792.12 were not presented in evidence nor was any effort exerted to compel their production in court by subpoena duces tecum, the same was properly refused to be deduced from the incurred shortage of the accused.

All the other sums allegedly taken from the accused by Director Osop, Alikhan Marohombsar and Auditor Casan totalling P31,070.00. (Exhs. 12, 12-A, etc., 13-A and 14-A), supported as they are by mere pieces of paper, despite the admission by Director Osop of having signed some of them (Exhs. 12-A, 12-D, 12-E and 12-I) were not valid disbursements. Granting that the amounts reflected in the chits were really secured by the persons who signed them, the responsibility to account for them still rests in the accused accountable officer. Malversation consists not only ill misappropriation or converting public funds or property to one's personal use but also by knowingly allowing others to 2 make use of or misappropriate them. WHEREFORE, there being no reversible error in the questioned decision of respondent court and the issues raised in this petition being essentially factual, the petition for review is DENIED and the appealed decision is AFFIRMED. SO ORDERED. Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Bidin, Sarmiento, Cortes, Grio-Aquino, Medialdea and Regalado, JJ., concur.

G.R. No. 102356 February 9, 1993 CALINICO B. ILOGON, petitioner, vs. SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, respondents. Florecita V. Bilbes for petitioner. The Solicitor General for public respondents.

CAMPOS, JR., J.: This is a petition for review on certiorari of the Decision * of the Sandiganbayan in Criminal Case No. 9776 entitled "People of the Philippines vs. Calinico B. Ilogon", dated May 14, 1991 finding petitioner guilty of the crime of Malversation of Public Funds as defined and penalized under Article 217 of the Revised Penal Code and sentencing him to the indeterminate penalty of from ten (10) years of prision mayor, as minimum, to fourteen (14) years of reclusion temporal, as maximum, with the

accessory penalties of the law; to suffer the penalty of perpetual special disqualification; and to pay a fine in the sum of P118,003.10, an amount equal to the amount malversed, with costs. Petitioner Calinico B. Ilogon was the acting Postmaster of the Bureau of Posts in Cagayan de Oro City from July, 1978 to January, 1986. He likewise performed the task of accepting payments, making collections and effecting disbursement as there was no cashier employed during the period of his incumbency. He was adept at this work because, before his designation as Acting Postmaster he was, as a matter of fact, a duly-appointed cashier. On September 19, 1983, Commission on Audit Auditors Robin S. Aban and Alfonso A. Gala conducted an examination of the cash and accounts of petitioner covering the period from September 8, 1983 to September 13, 1988. The examination showed that the petitioner incurred a shortage in his accounts amounting to P118,871.29 itemized in the following manner: Accountability: Balance shown by your cashbook on September 12, 1983 certified correct by you and verified by us P171,999.42 Credits to Accountability: Deduct: Cash, checks, and treasury warrants P 40,116.13 cash items allowed 13,012.00 P 53,128.13 Shortage P 118,871.29 ========= The amount of shortage was later reduced to P118,003.10. This shortage represents the following: 1. Vales P 8,846.00 2. Cash shortage (paid vouchers) already reimbursed and/or paid and received by you P 48,028.58 3. Cash items disallowed (paid vouchers) already reimbursed and/or paid and received by individual creditors P 5,787.97
1

4. Cash items disallowed (paid vouchers) amount disallowed by the Regional Office P 31,036.85 5. Cash items disallowed (paid vouchers) amount still payable non-budgetry expenses as certified by the accountant P 19,555.84 6. Actual shortage P 4,747.86 P 118,003.10 ========= On November 27, 1984, petitioner was charged with the crime of Malversation of Public Funds as defined and penalized under Article 217 of the Revised Penal Code 3 in an Information which reads as follows: That on or about September 13, 1983 or prior and subsequent thereto, in Cagayan de Oro City, Philippines, and within the jurisdiction of this Honorable Tribunal, the said accused, a public officer, being the Acting Postmaster of the Bureau of Posts of the said City, and as such accountable for the public funds collected and received by reason of his position, did then and there, wilfully, unlawfully and feloniously, and with grave abuse of confidence misappropriate, misapply and embezzle for his own personal use and benefit from the said funds, the total sum of ONE HUNDRED EIGHTEEN THOUSAND AND THREE PESOS AND TEN CENTAVOS (P118,003.10) Philippine Currency, to the damage and prejudice of the government. CONTRARY TO LAW. Before the Sandiganbayan, herein petitioner put up the following defense: 1. In respect to the shortage of P8,846.00, Item 1 in the auditor's letter of demand, the amount represents vales (cash advances) granted to postal employees of Cagayan de Oro City in payment of salaries or wages which the accused paid out to them, even before the period for which they were supposed to be paid. He received reimbursement checks on the 20th or 25th September, 1983 in payment thereof, but he remitted these payments to the Land
2

Bank of the Philippines only on October 17, 1983, per Official Receipt Number 312164. . . . 2. As regards that category of shortage amounting to P48,028.58, the accused claims that this amount represents the aggregate of the cash advances to salaries of the Regional Director, Postal Inspector, and postal employees of Davao, Iloilo and other places who were assigned in Cagayan de Oro City. The accused did not have these amounts on hand when his cash and account were audited on September 13, 1983, because the reimbursements for the said cash advances were not yet in his possession. If they were, the amounts given were less than the amounts stated in the voucher, consisting, therefore, of partial liquidations. In case of a partial liquidation, he would simply annotate the partial payment in the voucher. He would not enter partial payments in the cash book. 3. Respecting that category of shortage amounting to P5,787.97, the accused explained that this shortage constituted cash advances to postal employees. While reimbursement checks had already been paid to the employees involved by the Regional Office of the Bureau of Posts, these employees had negotiated or encashed their reimbursement checks without turning over the proceeds thereof to the accused Acting Postmaster. The accused claims that the shortage had later been paid through a remittance he made in the Sum of P20,438.60, Exhibit "14", and in the amount of P65,000.00, Exhibit "10" xxx xxx xxx Finally, as regards the cash shortage of P4,747.86, the accused admitted the fact that he did not actually have this amount of cash when, during the audit, he was told to present all his cash on hand. It is his claim that all the while, this amount had in fact been in the possession of his teller. While he forgot to tell the auditors that the cash was actually with the teller, he remitted this amount to the Land Bank on September 19, 1983, as evidenced by Official 4 Receipt No. 31176, Exhibit "11".

After trial, the respondent Sandiganbayan found petitioner guilty beyond reasonable doubt of the crime charged. Hence, this appeal. Petitioner would try to evade the application of Article 217 of the Revised Penal Code by arguing that he never misappropriated the amount of P118,003.10 for his own personal use as the bulk of it was given as cash advances to his co-employees. He pleads: . . . the act of petitioner in giving out vales and/or cash advances should not be condemned or be considered as a criminal act but should instead be lauded not only because the same was done purely for humanitarian reasons and that is to alleviate the plight of his co-employees during those hard times when the salaries of lowly government employees were very much below the ordinary level of subsistence and his desire to see to it that the public interest will not be jeopardized, . . ., but also because this has been the undisturbed practice in their office since time immemorial, even before the accused's 5 incumbency . . . . Petitioner's argument fails to persuade Us. In the crime of malversation, all that is necessary for conviction is proof that the accountable officer had received public funds and that he did not have them in his possession when demand therefor was made. There is even no need of direct evidence of personal misappropriation as long as there is a shortage in his account and petitioner cannot satisfactorily explain the 6 same. In this case, petitioner was the official custodian of the missing funds. He himself admitted the shortage of P118,003.10 in his cash and accounts as Acting Postmaster but could not give a satisfactory explanation for the same. he would invoke what he calls "humanitarian reasons" as the justification for the said shortage. But, like the accused Cabello 7 v. Sandiganbayan, petitioner herein knows that his granting of "chits" and "vales" which constituted the bulk of the shortage was a violation of the postal rules and regulations. Such practice, it was held in Cabello, is also prohibited by Memoramdum Circular No. 570, dated June 29, 1968, of the General Auditing Office. This Court went further to state that "giving vales" is proscribed under Presidential Decree No. 1445, otherwise known as the Government Auditing Code of the Philippines, specifically Section 69 thereof, which provides that postmasters are only allowed to use their collections to pay money orders, telegraphic transfers and withdrawals from the proper depository bank whenever their cash 8 advances for the purpose are exhausted."

The fact that petitioner did not personally use the missing funds is not a valid defense and will not exculpate him from his criminal liability. And as aptly found by respondent Sandiganbayan, "the fact that (the) immediate superiors of the accused (petitioner herein) have acquiesced to the practice of giving out cash advances for convenience did not legalize the disbursements". The fact also that petitioner fully settled the amount of P188,003.10 later is of no moment. The return of funds malversed is not a defense. It is neither an exempting circumstance nor a ground for extinguishing the accused's criminal liability. At best, it is a mitigating 9 circumstance. In the light of the above finding and under the plain language of the applicable laws, We hold that the evidence was sufficient to sustain the verdict finding the petitioner guilty of the crime charged. The judgment of the Sandiganbayan is hereby AFFIRMED and the petition is DISMISSED. SO ORDERED. Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, GrinoAquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo and Melo, JJ., concur. Quiason, J., took no part. Gutierrez, Jr., J., is on leave.

Rodillas y Bondoc GUILTY beyond reasonable doubt as principal in the crime of Evasion through Negligence, as defined and penalized under Article 224 of the Revised Penal Code, and there being no modifying circumstance to consider, hereby sentences him to suffer the straight penalty of FOUR (4) MONTHS and ONE (1) DAY of arresto mayor, to suffer eight (8) years and one (1) day of temporary special disqualification and to pay the costs of this action. SO ORDERED. (Rollo, p. 30) Petitioner Rodillas was charged with having committed the said crime in an information which reads as follows: That on or about the 27th day of March, 1980, in the City of Caloocan, Philippines, and within the jurisdiction of this Honorable Court, said accused, being then a policeman duly appointed and qualified as such, hence a public officer, specially charged with the duty of keeping under his custody and vigilance and of conducting and delivery from the City Jail, Caloocan City to the Court of First Instance, Branch XXXIV, Caloocan City and return, one Zenaida Sacris Andres, a detention prisoner being tried for violation of Section 4, R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972, under Crim. Case No. C-12888, did then and there with great carelessness and unjustifiable negligence, allow and permit said Zenaida Sacris Andres to have snacks and enter the comfort room at the second floor of the Genato Building, Rizal Avenue, Caloocan City after the hearing of said case, v,,ithout first ascertaining for himself whether said comfort room is safe and without any egress by which the said detention prisoner could escape, thereby enabling said Zenaida Sacris Andres, to run away and escape thru the window inside the comfort room, as in fact she did run away and escape from the custody of said accused. CONTRARY TO LAW. (Rollo, p. 6) The prosecution's evidence upon which the court based its finding of guilt is summarized as follows: ... accused herein is a Patrolman of the Integrated National Police Force of Caloocan City and assigned with the jail

G.R. No. L-58652 May 20, 1988 ALFREDO RODILLAS Y BONDOC, petitioner vs. THE HONORABLE SANDIGANBAYAN and THE PEOPLE OF THE PHILIPPINES, respondents. Santiago R. Robinol for petitioner. The Solicitor General for respondents.

GUTIERREZ, JR., J.: This is a petition brought by Alfredo Rodillas y Bondoc asking for the reversal of a decision of the Sandiganbayan which found him guilty beyond reasonable doubt of the crime of Infidelity in the Custody of Prisoner Thru Negligence (Art. 224, RPC). The dispositive portion of the decision reads: WHEREFORE, judgment is hereby rendered finding accused Alfredo

section thereof. On March 27, 1980, when he reported for work, he was directed by his superior, Corporal Victor Victoriano, officer-in-charge in assigning police officers to escort prisoners, to escort Zenaida Sacris deadline Andres, a detention prisoner, before the sala of Judge Bernardo Pardo of the Court of First Instance, Br.XXXIV, located at the Genato Building, Caloocan City, to face trial for an alleged Violation of the Dangerous Drugs Act of 1972, as the policewoman officer who was supposed to escort the said detainee was then sick. He and the detainee proceeded to the court building and arrived thereat between 8:30 and 9:00 o'clock in the morning. while waiting for the arrival of the judge at the courtroom, Pat. Orlando Andres, who happened to be in the court and a relative of the husband of said detention prisoner Zenaida, approached the accused and requested the latter if he could permit Zenaida to talk to her husband. The accused consented and Zenaida Andres had a short talk with her husband. After a short while, the presiding judge deferred the decision against her because of a new Presidential Decree revising some provisions regarding violations of the Dangerous Drugs Act. After the court had already adjourned, the husband of Zenaida requested the accused to allow them to have lunch as they were already very hungry. He consented to the request and they proceeded to the canteen located at the mezzanine floor of the court building (Exhibit 1).<re||an1w> He took a seat beside Zenaida and Pat. Andres while the relatives of said detainee were seated at a separate table. While eating, the husband of Zenaida asked him if he could accompany his wife to the comfort room as she was not feeling well and felt like defecating. The accused accompanied Zenaida and a lady companion to the ladies' comfort room located at the second floor of the building (Exibit 2). Zenaida and her lady companion entered the comfort room, while he stood guard along the alley near the ladies' comfort room facing the door thereof (Exhibit 5). Not long after, the lady companion of Zenaida came out of the comfort room and told him that she was going to buy sanitary napkins for Zenaida as the latter was then bleeding and had a menstruation

and could not go out of the comfort room. After ten minutes elapsed without the lady companion of Zenaida coming back, the accused became suspicious and entered the comfort room. To his surprise, he found Zenaida no longer inside the comfort room. He noticed that the window of said comfort room was not provided with window grills. He tried to peep out of the window by stepping on the flush tank which is just about 3 feet from the window and noticed that outside of the window there was a concrete eave extending down to the ground floor of the building which he presumed that Zenaida might have used as a passage in escaping (Exhibits 2-A, 3 and 4 to 4-C). He immediately went out to look for the escapee inside the building with the help of Pat. Andres but they were not able to see her. Pat. Andres advised him to go to Zenaida's house as she might be there, which home is located at Bagong Barrio, Caloocan City. Pat. Andres having told him that the husband of the escapee is from Rizal, Nueva Ecija, the accused borrowed the car of his brother-in-law and proceeded to said town. Upon arrival thereat, they contacted the relatives of Zenaida and asked for information as to her whereabouts, but they answered in the negative. They went back to Caloocan City and went again directly to Bagong Barrio to the house of Zenaida, arriving thereat at around 8:00 o'clock in the evening. While at the residence of Zenaida, Cpl. Victoriano arrived and the accused related to him about the escape of Zenaida. He formally reported the matter of his superior officer at the City Jail Capt. Leonardo Zamora. The accused declared further that as a jailer, he never had any training nor lecture by his superiors regarding the manner of delivering prisoners. However, he admitted that he did not inspect first the comfort room before he allowed Zenaida to enter because there were many females going in and out of said comfort room, and that he did not promptly report the escape earlier because they were then pressed for time to intercept Zenaida at the highway. (Rollo, pp. 1821). The petitioner assigns the following errors:

I WHETHER PETITIONER'S CONVICTION BY THE SANDIGANBAYAN BASED ONLY ON HIS ADMISSIONS WITHOUT THE PROSECUTION HAVING PRESENTED EVIDENCE TO PROVE HIS NEGLIGENCE WILL LIE. II WHETHER THE ACTS OF PETITIONER COULD BE QUALIFIED AS DEFINITE LAXITY AMOUNTING TO DELIBERATE NON-PERFORMANCE OF DUTY TO SUSTAIN HIS CONVICTION. (Brief for the petitioner, p. 5) In essence, the sole question to be resolved in the case at bar is whether, under the foregoing facts and circumstances, the respondent Sandiganbayan committed a reversible error in holding the petitioner guilty of infidelity in the custody of a prisoner through negligence penalized under Art. 224 of the Revised Penal Code. The petitioner specifically alleges that his conviction by the Sandiganbayan was based merely on his admissions without the prosecution presenting evidence to prove his negligence. Sec. 22, Rule 130 of the Rules of Court states that "the act, declaration, or omission of a party as to a relevant fact may be given in evidence against him. The admissions and declarations in open court of a person charged with a crime are admissible against him. (See U.S. v. Ching Po, 23 Phil. 578). The records show that the elements of the crime for which the petitioner was convicted are present. Article 224 of the Revised Penal Code states: ART. 224. Evasion through negligence. If the evasion of the prisoner shall have taken place through the negligence of the officer charged with the conveyance or custody of the escaping prisoner, said officer shall suffer the penalties of arresto mayor in its maximum period to prision correccional in its minimum period and temporary special disqualification. The elements of the crime under the abovementioned article are: a) that the offender is a public officer; b) that he is charged with the conveyance or custody of a prisoner, either detention prisoner or prisoner by final judgment; and c) that such prisoner escapes through his

negligence (See Reyes, L.B., Revised Penal Code, Book II, 1977 ed., p. 407). There is no question that the petitioner is a public officer. Neither is there any dispute as to the fact that he was charged with the custody of a prisoner who was being tried for a violation of the Dangerous Drugs Act of 1972. The only disputed issue is the petitioner's negligence resulting in the escape of detention prisoner Zenaida Andres. The negligence referred to in the Revised Penal Code is such definite laxity as all but amounts to a deliberate non-performance of duty on the part of the guard (Id., p. 408). It is evident from the records that the petitioner acted negligently and beyond the scope of his authority when he permitted his charge to create the situation which led to her escape. The petitioner contends that human considerations compelled him to grant Zenaida Andres requests to take lunch and to go to the comfort room to relieve herself. As a police officer who was charged with the duty to return the prisoner directly to jail, the deviation from his duty was clearly a violation of the regulations. In the first place, it was improper for the petitioner to take lunch with the prisoner and her family when he was supposed to bring his charge to the jail. He even allowed the prisoner and her husband to talk to each other at the request of a co-officer. It is the duty of any police officer having custody of a prisoner to take necessary precautions to assure the absence of any means of escape. A failure to undertake these precautions will make his act one of definite laxity or negligence amounting to deliberate non-performance of duty. His tolerance of arrangements whereby the prisoner and her companions could plan and make good her escape should have aroused the suspicion of a person of ordinary prudence. The request for lunch and the consequent delay was an opportunity for the prisoner to learn of a plan or to carry out an earlier plan by which she could escape. The plan was in fact carried out with the help of the lady who accompanied his prisoner inside the comfort room. The use of a toilet is one of the most familiar and common place methods of escape. It is inconceivable that a police officer should fall for this trick. The arrangement with a lady friend should have aroused the petitioner's suspicion because the only pretext given by the petitioner was that she was going to answer the call of nature. It was, therefore, unnecessary for her to be accompanied by anyone especially by someone who was not urgently in need of a toilet if the purpose was merely to relieve herself. Despite this, the petitioner allowed the two to enter the comfort room without first establishing for himself that there was no window or door allowing the possibility of escape. He even allowed the

prisoner's companion to leave the premises with the excuse that the prisoner was having her monthly period and that there was a need to buy sanitary napkins. And he patiently waited for more than ten minutes for the companion to return. This was patent negligence and incredible naivette on the part of the police officer. Contrary to what the petitioner claims, the escape was not a confluence of facts and,circumstances which were not foreseen and were not unnatural in the course of things. Not only should they have been foreseen but they should have been guarded against. Considering that the city jail was only a kilometer away and it was only 11:30 a.m., it would not have been inhuman for the petitioner to deny the prisoner's request to first take lunch. Neither would it have been inhuman if he cleared the toilet of female occupants and checked all possible exists first and if he did not allow the lady companion to go with Zenaida Andres to the comfort room. These human considerations, however, are immaterial because the fact remains that as a police officer, he should have exercised utmost diligence in the performance of his duty. The supposed confluence of facts does not alter his liability. That he was not trained in escorting women prisoners is likewise unacceptable as there are no hard and fast rules of conduct under all conceivable situations for police officers acting as guards. However, they are expected to use prudence, diligence, and common sense. That Judge Pardo did not immediately pronounce judgment so the petitioner could have immediately brought Zenaida back to jail is inconsequential. In the first place, the escape would not have materialized had he immediately escorted her back to jail after the hearing. That he cannot follow the prisoner inside the comfort room because it would create a commotion, he being a male, is a lame excuse. There is nothing wrong in asking the ladies for permission so he could check the comfort room first to insure that the prisoner cannot escape. The fact that the building is made of concrete and the outside windows covered with grills should not make a police officer complacent especially because well-planned escapes are not uncommon. Escapes are, in fact, even presumed so much so that two (2) guards are usually assigned to a prisoner. (Tsn, August 4, 1981, p. 40) There appears to have been no genuine effort on the part of the petitioner to recapture the escapee. Instead of promptly reporting the matter so that an alarm could immediately be sent out to all police agencies and expert procedures followed, he allegedly tried to look for her in the latter's house in Caloocan and failing in this, proceeded to Nueva Ecija. It was only later in the evening that he formally reported the matter to his superior. This even gave the escapee greater opportunity to make good her escape because the

chances of her being recaptured became much less. Such action requires concerted police effort, not a oneman job which petitioner should have been or was probably aware of. The petitioner further contends that he cannot be convicted because there was no connivance between him and the prisoner. In support of his claim, he cites the case of Alberto v. dela Cruz, (98 SCRA 406). The citation, however, is erroneous. It creates the impression that for one to be held liable under Art. 224, there must be a showing that he first connived with the prisoner. This was not the ruling in said case. Conniving or consenting to evasion is a distinct crime under Art. 223 of the Revised Penal Code. The petitioner here is not being charged with conniving under Art. 223 but for evasion through negligence under Art. 224 of the same Code. It is, therefore, not necessary that connivance be proven to hold him liable for the crime of infidelity in the custody of prisoners. We quote the Solicitor General that the Sandiganbayan's observation regarding escaped prisoners is relevant and timely. The Court stated: It is high time that the courts should take strict measures against law officers to whom have been entrusted the custody and detention of prisoners, whether detention prisoners or prisoners serving sentence. Laxity and negligence in the performance of their duties resulting in the mysterious escapes of notorious criminals have become common news items, involving as it does the suspicion that monetary considerations may have entered into the arrangements which led to the successful escape of such notorious criminals even from military custody. No quarters should be extended to such kind of law officers who, deliberately or otherwise, fail to live up to the standard required of their duties, thus directly contributing not only to the clogging of judicial dockets but also to the inevitable deterioration of peace and order. (Brief for Respondents, pp. 17-18) WHEREFORE, the petition is hereby DISMISSED. The questioned decision of the Sandiganbayan is AFFIRMED. SO ORDERED. Yap, C.J., Fernan, Narvasa, Melencio-Herrera, Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Sarmiento, Cortes, and Grio-Aquino, JJ., concur.